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Matt Lynch, Shareholder, Sebris Busto James

The Impact of a Trump NLRB could be “Yuge”

By Matt Lynch
Sebris Busto James

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Original Publish Date: March 7, 2017

According to tradition, the party holding the White House can appoint a majority of National Labor Relations Board members. At present, there are one Republican, two Democrats and two vacancies on the Board. Consequently, President Trump will have the opportunity to appoint the first majority Republican NLRB in over eight years. After eight years of an activist, union-tilted NLRB, employer and industry groups are salivating at a chance to reverse many of the Obama Board’s most controversial actions. The target list of such actions is large, but it is expected the following will be in the new Board’s sights:

“Quickie” Election Rules. Most of you know about the new election rules the NLRB put into effect in April 2015. The purpose of the new rules, according to the NLRB, was to shorten the time period from the date of filing of a union election petition to the election date so that employees could exercise their Section 7 right to decide on unionization without undue delay. In fact, according to early NLRB data, the new rules did reduce the average election period from approximately 42 days to 23 days. This shortened period disadvantages employers, who are often playing catch-up with unions who have been organizing employee groups for months or years. Recent data does show unions winning slightly more elections than before. Much controversy surrounded these new rules, so it is likely they are Target Number One to the NLRB once there is a full complement of Board members.

Micro-Units. In its 2011 Specialty Healthcare decision, the Obama Board overturned decades of precedent and held that if a small group of employees in non-acute care facilities (e.g., clinics, physicians’ offices, labs) share common terms and conditions of employment, then that employee group constitutes a presumptively appropriate bargaining unit for union organizing purposes. This decision made it easier for unions to get their feet into the door of employers. The Board then shifted the burden to employers to show by “overwhelming evidence” that a broader group of employees should be included in the proposed bargaining unit. This decision paved the way for ”micro-units” that consist of only a few employees in non-acute care settings. A new Trump Board could change course and revert to the old rule allowing employers to fend off organizing efforts by arguing that the only appropriate unit is a wider group of employees sharing a community (but not necessarily an overwhelming community) of interest.

Joint Employment. Under the Joint Employer doctrine, employees who share or codetermine wages, benefits and other conditions of employment are both considered the employer of the affected employees. This makes both entities—which can include a temporary agency, franchisor or other third party company—liable under the National Labor Relations Act for union issues and other protected activity by employees. The NLRB has ruled that fast food franchisors and franchisees may be joint employers (the McDonald’s case), and it has also found that a business may be a joint employer of temporary employees supplied by a staffing agency. Under this new approach, unions will be more eager to organize employee groups if one of the joint employers has deep pockets. The NLRB’s ruling changed established precedent requiring both parties to exercise actual, and not potential, control over the employees. Now, as long as both parties exercise potential, and even indirect, control and influence, they will be considered joint employers. A Trump Board may reverse this rule and go back to the traditional NLRB rule requiring both employers to exercise actual and direly control over the terms and conditions of employment of employees in a bargaining unit or proposed bargaining unit.

Handbook Policies. Numerous NLRB decisions over the last several years have concluded that certain handbook provisions are unlawful and overly broad because they might have a chilling effect on employees who wish to exercise their rights under the NLRA. These include typical handbook provisions dealing with topics such as harassment, confidentiality of certain business information, respectful conduct and workplace investigations. A new Trump NLRB will likely reverse many of these decisions and go back to an approach that does not challenge the validity of facially-neutral policies, but instead challenges an employer’s discriminatory application of the policies.

Social Media Policies. Since 2011, the NLRB has limited employer efforts to restrict employees from social media communications denigrating the employer’s workplace and management on the basis that such speech is protected by Section 7 of the NLRA. It is expected the Board will allow employers more leeway in regulating disparaging social media postings about management, customers, products and the company.

Mandatory Arbitration and Class Action Waivers.The NLRB considers employment agreement provisions and employer policies requiring an employee to arbitrate individual and class action disputes to be unlawful because such agreements/policies prevent employees from joining together to address wages, hours, working conditions as guaranteed by Section 7 of the NLRA. A Trump Board will take another look at these waivers and will probably reverse the Obama Board’s approach.

It should be a wild ride with a new NLRB, so hang on.

Matt Lynch is a shareholder with Sebris Busto James. Matt represents private and public sector health care and other employers in all aspects of labor relations, including in collective bargaining, grievances and labor arbitrations. He has handled many cases in front of the NLRB and PERC, and also advises employers on day-to-day and strategic employee relations issues, including discipline and discharge, employee leaves, employment agreements, policy development, handbooks, wage and hour and discrimination. Contact Matt at mlynch@sebrisbusto.com or 425-450-3387.

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